Crane v. Green & Freedman Baking Co.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 97-1133

SANDRA CRANE, FUND MANAGER,

Plaintiff, Appellant,

v.

GREEN & FREEDMAN BAKING COMPANY, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

David C. Jenkins, with whom Matthew E. Dwyer, Christine L.

Nickerson and Dwyer & Jenkins, P.C. were on brief for appellant.

Adam S. Elman for appellees.

January 20, 1998

CAMPBELL, Senior Circuit Judge. The terms of a

collective bargaining agreement required Green & Freedman

Baking Company, a Massachusetts corporation, to make periodic

payments on behalf of its unionized drivers to the New

England Teamsters and Baking Industry Health Benefits and

Insurance Fund. After experiencing financial difficulties,

Green & Freedman ceased to make the agreed-upon contributions

and transferred all remaining assets to a successor entity

named Boston Bakers, Inc. The Fund Manager of the Health

Benefits and Insurance Fund (referred to hereinafter as the

"Health Fund") thereupon sued Green & Freedman, Boston Bakers

and the two corporations' principals, Richard Elman and

Stanley Elman, in the district court to recover the payments

owed by Green & Freedman with interest, costs and penalties.

Both corporate defendants conceded liability for

the delinquent contributions owed by Green & Freedman to the

Health Fund. The Elmans, however, denied they were

personally liable for these corporate debts, and a jury trial

took place to determine that issue. After the presentation

of evidence, and before submission to the jury, the district

court entered judgment as a matter of law in favor of the

Elmans, pursuant to Federal Rule of Civil Procedure 50(a).

The Health Fund appeals. We affirm in part and reverse in

part.

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I. Background

Defendant-Appellee Green & Freedman Baking Company

("Green & Freedman") was a family-owned Massachusetts

corporation formed in 1934 that produced and sold baked goods

until, on January 15, 1993, its remaining assets were

transferred in bulk to Appellee Boston Bakers, Inc. ("Boston

Bakers"). Boston Bakers operated essentially the same

business as Green & Freedman until its demise in 1995.

Starting in 1975, responsibility for Green &

Freedman's affairs rested with Defendants-Appellees Stanley

Elman and Richard Elman, grandsons of one of the company

founders. Stanley Elman started working for Green & Freedman

in 1959 and by 1969 became its treasurer and a director,

positions he occupied through the end of the corporation's

and its successor's existence. Richard Elman began with

Green & Freedman in 1964 and served as its President and a

director from 1975.

Prior to transferring its assets to Boston Bakers

as of January 15, 1993, Green & Freedman employed between 12

and 18 truck drivers who were members of the Bakery Drivers

and Helpers Local 494. The union drivers' wages, hours, and

conditions of employment were governed by a collective

bargaining agreement between the Union and Green & Freedman,

effective from May 5, 1991 to May 1, 1994. That agreement

required Green & Freedman to contribute $88 per week for

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every covered worker to the New England Teamsters and Baking

Industry Health Benefits and Insurance Fund. The Health

Fund's contractual right to contribution was additionally

protected by 515 of the Employee Retirement Income Security

Act ("ERISA"), 29 U.S.C. 1145 (1985), which doubles the

obligation of any employer who promises in a collective

bargaining agreement to make contributions to a multiemployer

benefits or pension plan.

From 1991, Green & Freedman began to suffer what

the Elmans described as a serious, and ultimately

irreversible, decline in sales and profits. Beginning in

April 1992, and continuing until its business was terminated

in January 15, 1993, Green & Freedman stopped making its

required contributions to the Health Fund. Green &

Freedman's unpaid contributions for this period, totaling

$39,776, are the basis for the liability the Health Fund

seeks to impose in this action.

By December 1992, the Elmans had decided to

transfer all of Green & Freedman's assets to a newly-formed

corporate shell entitled Boston Bakers, Inc., pursuant to the

bulk transfer provisions of the Massachusetts Uniform

Commercial Code. See Mass. Gen. Laws ch. 106, 6-101 to 6-

110 (1990), repealed, Mass. Acts 1996 ch. 160, 3 (1996).1

1. Although repealed in 1996, the former Massachusetts
U.C.C. Article 6 still applies to bulk transfers that, like
the Boston Bakers transaction, occurred prior to the repeal.

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Boston Bakers was simply a continuation of Green &

Freedman's business. Its nominal and sole shareholder was

Claire Lank, a long-time Green & Freedman employee installed

by the Elmans. The Elmans were designated as the new

corporation's officers and, along with their wives, as its

directors. A voting trust with Lank enabled the Elmans to

continue exercising complete control of Green & Freedman's

assets, once transferred, in the form of Boston Bakers.

The bulk transfer shifted all of Green & Freedman's

assets, which were then worth somewhere between $480,000 and

$500,000, to Boston Bakers. In exchange, Boston Bakers

assumed Green & Freedman's secured debt. The secured debt,

which totaled $498,498.17, was owed to two secured creditors:

U.S. Trust, the company's institutional lender, and the 75

Old Colony Avenue Realty Trust (the "Realty Trust"), a real

estate trust that owned the company's plant for the benefit

of the Elmans. U.S. Trust held a security interest in all of

Green & Freedman's property, both then-owned and thereafter

acquired, while the Realty Trust held a mortgage on the

plant.

As part of the bulk transfer, Boston Bakers gave

Green & Freedman a promissory note, which Boston Bakers held

for the benefit of Green & Freedman's unsecured creditors,

worth $32,798.99. That amount left the unsecured creditors,

See 1996 Mass. Acts ch. 160, 5.

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including the Health Fund, with claims worth roughly five

cents on the dollar.

As required by law, Green & Freedman, after some

hesitation, announced the bulk transfer to creditors in late

December 1992 and provided a list of its assets. See Mass.

Gen. Laws ch. 106, 6-104 to 6-106, repealed, Mass. Acts

1996 ch. 160, 3. The Health Fund responded by bringing

this action in the federal district court which, in its

initial form, sought, inter alia, a preliminary injunction

against the transfer of Green & Freedman's assets, alleging

the transfer to violate ERISA 515, 29 U.S.C. 1145. On

January 12, 1993, the district court denied injunctive

relief. Three days later, the bulk transfer was consummated.

Boston Bakers thereafter carried on business in the

same manner as Green & Freedman. Employing the same workers

and equipment at the same plant, it produced the same kinds

of baked goods for the same customers. Boston Bakers was as

unprofitable as Green & Freedman. After two-and-a-half years

of continued difficulties, U.S. Trust foreclosed, and Boston

Bakers closed its doors in August 1995. According to Richard

Elman's testimony, which was not contradicted, the Elmans

personally received no distribution in settling the company's

affairs.

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Following the liquidation of Boston Bakers' assets,

the Health Fund filed an amended complaint2 seeking recovery

of the delinquent contributions from both corporations, and

from Richard Elman and Stanley Elman as well. As Green &

Freedman had done previously, Boston Bakers conceded

liability for the contributions Green & Freedman failed to

make to the Health Fund from April 1992 until the bulk

transfer on January 15, 1993. With the assets of both Green

& Freedman and Boston Bakers completely liquidated, the

Health Fund looked to the Elmans personally for recovery of

Green & Freedman's delinquent contributions. Count 3 of the

Health Fund's Second Amended Complaint alleged that the

Elmans were personally liable as the "'alter egos' of Green

and Freedman." Count 4 premised the Elmans' personal

liability on their disregard for Boston Bakers' corporate

identity, alleging that the Elmans completely controlled

2. An amended complaint dated March 1, 1995, was superseded
by a Second Amended Complaint dated July 14, 1995. In both
complaints, the Health Fund sought recovery for Green &
Freedman's defaulted payments due under the collective
bargaining agreement for the period April 1992 through
January 15, 1993, totaling $39,770, exclusive of interest,
costs and liquidated damages. Recovery from Green & Freedman
was sought under the contract, and from Boston Bakers on the
theory that, as a successor entity to Green & Freedman,
Boston Bakers was obligated to remit the latter's delinquent
contributions. Recovery from the two Elmans personally was
sought because they were allegedly "alter egos" of Green &
Freedman, and because they allegedly established Boston
Bakers with fraudulent intent, exercised complete control
over it (although owning no stock), and disregarded its
corporate identity.

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Boston Bakers and created it with fraudulent intent. Both

parties requested a trial by jury.

At trial, the Health Fund called Stanley Elman,

Richard Elman, and Richard's wife, Barbara Elman as

witnesses. Counsel for the Elmans declined cross-examination

at the time, planning to call the Elmans later as their own

witnesses. The Health Fund also introduced the deposition

testimony of Claire Lank, who had served as Green &

Freedman's secretary before being installed as Boston Bakers'

nominal shareholder. In addition, the parties stipulated to

the admission of many documents recording the collective

bargaining agreement, the creation of Boston Bakers, and the

operation of Green & Freedman.

At the close of the Health Fund's case-in-chief,

the Elmans moved for judgment in their favor as a matter of

law pursuant to Rule 50(a). The district court granted the

motion with respect to Count 3 and the liability of Green &

Freedman, ruling that the Health Fund had failed to meet the

criteria stated in Alman v. Danin, 801 F.2d 1 (1st Cir.

1986), for corporate veil-piercing in an ERISA case. The

court left open for the time being the Health Fund's claim

that the Elmans were personally liable for Boston Bakers'

liability.

The defense then called as its only witness Richard

Elman, who testified about the creation and operation of

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Boston Bakers. The Elmans renewed their motion for judgment

as a matter of law. Again relying on Alman, the district

court allowed the motion.

The Health Fund now appeals from the district

court's grant of judgment as a matter of law.

II. Standard of Review

To review a grant of judgment as a matter of law,

we stand in the district court's shoes and may affirm only if

the evidence did not furnish a "legally sufficient basis for

a reasonable jury to find" for the non-moving party. Fed. R.

Civ. P. 50(a)(1); see also Coyante v. Puerto Rico Ports

Auth., 105 F.3d 17, 21 (1st Cir. 1997). This standard

requires more than "a mere scintilla" of evidence in the non-

moving party's favor. Fashion House, Inc. v. K Mart Corp.,

892 F.2d 1076, 1088 (1st Cir. 1989). Every reasonable

inference, however, must be drawn in favor of the non-moving

party. See Favorito v. Pannell, 27 F.3d 716, 719 (1st Cir.

1994).

In the instant appeal, we must decide whether there

was a legally sufficient basis in the evidence presented for

a reasonable jury to have pierced the corporate veils and to

have imposed personal liability on the two Elmans for the

conceded indebtedness to the Health Fund of both companies.

The legal standard for when it is proper to pierce

the corporate veil is notably imprecise and fact-intensive.

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Leading commentators state that "no hard and fast rule as to

the conditions under which the [corporate] entity may be

disregarded can be stated as they vary according to the

circumstances of each case," William M. Fletcher, 1 Fletcher

Cyclopedia of the Law of Private Corps. 41.30, at 662 (1990

rev. ed.), and, more skeptically, that "[t]here is a

consensus that the whole area of limited liability, and

conversely of piercing the corporate veil, is among the most

confusing in corporate law," Frank H. Easterbrook & Daniel R.

Fischel, Limited Liability and the Corporation, 52 U. Chi. L.

Rev. 89, 89 (1985).

Because a rigid test could not account for all the

factual variety, the federal common law standard adopted in

our Circuit for measuring an ERISA plaintiff's veil-piercing

claim is somewhat open-ended. We said in Alman that courts

should consider "the respect paid by the shareholders

themselves to [the] separate corporate identity; the

fraudulent intent of the [individual defendants]; and the

degree of injustice that would be visited on the litigants by

recognizing the corporate identity." Alman, 801 F.2d at 4.

Of these three elements, "a finding of some fraudulent intent

is a sine qua non to the remedy's availability." See United

Elec., Radio and Machine Workers v. 163 Pleasant Street

Corp., 960 F.2d 1080, 1093 (1st Cir. 1992).

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Before examining the district court's Rule 50(a)

ruling in light of these criteria, we need to consider yet

another problem. The ERISA cause of action under which the

Health Fund sued here, ERISA 515(a)(1)(3), authorizes only

injunctive or "other appropriate equitable relief." 29

U.S.C. 1132(a)(1)(3) (emphasis added). Courts have

interpreted this cause of action as providing no right to a

jury trial, even when the relief sought is monetary. See,

e.g., Spinelli v. Gaughan, 12 F.3d 853, 855 (9th Cir. 1993).

As a result, Alman and other federal precedent were bench

proceedings in which the judge determined both the law and

the facts. No consideration was given to the separate

responsibilities of judge and jury in the applying of veil-

piercing criteria.

The jury trial here, not being of right, was

undertaken by the judge with the consent of both parties.

Federal Rule of Civil Procedure 39(c), allows a judge to

order a consensual jury trial in actions not triable as of

right by a jury. In such cases, the "verdict has the same

effect as if trial by jury had been a matter of right." Id.

Accordingly, in reviewing the district court's Rule 50(a)

determination, we are supposed to apply the same principles

as if the jury trial had been one of right. We must do so

here, however, without the benefit of ERISA precedent

instructing on whether, and to what degree, the jury rather

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than the judge is responsible for applying the Alman veil-

piercing factors.

While the absence of ERISA precedent on this aspect

is somewhat troubling, we conclude that, in a consensual jury

trial, it is principally the jury's function, and not the

court's, to decide whether or not the Alman veil-piercing

standards were met. The jury, to be sure, can find

individual liability only if the evidence is minimally

sufficient to do so under Alman criteria. Whether the

evidence reaches that threshold is a question of law. But

given the issue's fact-intensive nature, the legal threshold

of evidentiary sufficiency is a relatively low one.

In reaching the above conclusion, we are influenced

by the fact that federal courts, outside the ERISA context,

have held that veil-piercing "is the sort of determination

usually made by a jury because it is so fact specific." Wm.

Passalacqua Builders, Inc. v. Resnick Developers S., Inc.,

933 F.2d 131, 137 (2d Cir. 1991); see also FMC Finance Corp.

v. Murphree, 632 F.2d 413, 421 & n.5 (5th Cir. 1980) (holding

that, as a matter of federal procedure in diversity cases,

"the issue of corporate entity disregard is one for the

jury"). Most state courts adopt a similar approach. See,

e.g., Pepsi-Cola Metropolitan Bottling Co. v. Checkers, Inc.,

754 F.2d 10, 14 (1st Cir. 1985)(applying Massachusetts law);

Castleberry v. Branscum, 721 S.W.2d 270, 277 (Tex. 1986)

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(treating veil-piercing as factual and, therefore, jury

question). Courts in these jurisdictions have emphasized

that "[t]he conditions under which the corporate entity will

be disregarded vary according to the circumstances present in

each case." Electric Power Bd. v. St. Joseph Valley

Structural Steel Corp., 691 S.W.2d 522, 526 (Tenn. 1985).

Even where veil-piercing is decided by judge rather than

jury, the courts have held that the question, while

equitable, is one of fact. See, e.g., Smetherman v. Wilson,

626 So.2d 71, 73 (La. Ct. App. 1993) (explaining that trial

judge decides whether to pierce corporate veil after

examining the "totality of the circumstances"). Indeed, in

Alman we reviewed the district court's determinations that

the individual defendants "had acted in bad faith" and "had

not respected [corporation's] separate existence even

minimally" as "inferences" subject to the clearly-erroneous

review accorded issues of fact. 801 F.2d at 4; see also Pipe

Fitters Health and Welfare Trust v. Waldo, R., Inc., 969 F.2d

718, 721 (8th Cir. 1992) (reviewing ERISA veil-piercing

decision for clear error).

In assigning veil-piercing here largely to the

jury, we are also influenced by the fact that, although

entitled to a bench trial, the parties agreed to proceed

before a jury. This choice would be next to meaningless were

we now to hold that the principal contested issue -- the

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Elmans' personal liability -- remained one for the court to

determine. Given a Rule 39(c) election to proceed by jury

trial, other courts have held that the district court may

relegate all factual determinations to the jury, even those

normally treated as equitable. See, e.g., Gloria v. Valley

Grain Prods., Inc., 72 F.3d 497, 499 (5th Cir. 1996);

Thompson v. Parkes, 963 F.2d 885, 888 (6th Cir. 1992); cf.

McCain Foods, Inc. v. St. Pierre, 463 A.2d 785, 787 (Me.

1983)(holding that veil-piercing, while normally in Maine a

matter for the court, was properly submitted to jury under a

state rule parallel to Fed. R. Civ. P. 39(c)). The point of

Rule 39(c)'s jury-by-consent provision has been said to be to

allow parties who so wish to have disputed facts, including

ultimate facts, resolved by a jury. See generally 9 Charles

A. Wright & Arthur R. Miller, Federal Practice and Procedure

2333 (1995).

As the veil-piercing determination is principally

for the jury to make, we shall affirm the district court's

grant of judgment for the individual defendants only, as

previously noted, if we determine there was no "legally

sufficient basis for a reasonable jury to find" for the

plaintiff Health Fund. (Our review standard would obviously

be different were veil-piercing regarded as a legal issue

relegated to the judge even in a jury trial.)

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We turn now to the evidence presented below,

inquiring whether jury issues were presented concerning the

Elmans' personal liability, first, for Green & Freedman's

obligations to the Health Fund, and, second for Boston Bakers

responsibility for those same obligations.

III. Piercing the Corporate Veil: Green & Freedman

We hold that, on the record before the district

court its decision to take from the jury the question of the

Elmans' liability for Green & Freedman's delinquent

contributions was erroneous and must be vacated. We find

ample evidence to afford a reasonable jury, applying the

Alman criteria, 801 F.2d at 4, and exercising its broad

authority over the veil-piercing issue, supra, a legally

sufficient basis to reach beyond Green & Freedman's corporate

identity and hold the Elmans liable for the corporation's

unpaid contributions.

A. Fraudulent Intent

As previously noted, "the cases that permit veil

piercing in the ERISA milieu all emphasize that a finding of

some fraudulent intent is a sine qua non to the remedy's

availability." United Elec., Radio and Machine Workers, 960

F.2d at 1093. We explained in that case that, in the ERISA

veil-piercing sense, fraud need not reach the level needed

for criminal or even independently actionable civil fraud.

Still, it has to be more than "invisible." Id.

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There was evidence that the Elmans, through their

domination of Green & Freedman, caused the corporation to

make payments to themselves and their relatives at a time

when the corporation was known to be failing and could be

expected to default, or was already in default, on its

obligations to the Health Fund. These payments could be

found to lack any business justification. Courts have

routinely viewed the wrongful diversion of corporate assets

to or for controlling individuals at a time when the

corporation is in financial distress as a fraud that can

justify piercing the corporate veil. See, e.g., Laborers'

Pension Trust Fund v. Sidney Weinberger Homes, Inc., 872 F.2d

702, 705 (6th Cir. 1988) (per curiam)(piercing veil where

shareholder withdrew corporate funds at time of dissolution);

Lowen v. Tower Asset Management, Inc., 829 F.2d 1209, 1221

(2d Cir. 1987) (holding individuals responsible for

fiduciary's ERISA violations on evidence of "extensive

intermixing of assets . . . among the corporations and

individual defendants"); Labadie Coal Co. v. Black, 672 F.2d

92, 98-99 (D.C. Cir. 1982) (instructing trial court to

consider defendants' diversion of corporate assets to

personal uses); I.A.M. National Pension Fund v. Wakefield

Indus., Inc., 14 Employee Benefits Cas. (BNA) 1890 (D.D.C.

1991) (piercing employer's corporate veil under ERISA based

in part on "selective diversion of corporate assets"); see

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generally 1 William M. Fletcher, Cyclopedia of the Law of

Corporations 41.30, at 663 (listing among relevant factors

"siphoning of corporate funds by dominant stockholders" and

"the use of corporate funds to pay personal expenses without

proper accounting").

The Health Fund introduced a series of checks that

the Elmans made out to themselves from Green & Freedman's

corporate accounts. These checks dated from January 1991 to

January 1993, a period during which, according to Richard

Elman, Green & Freedman "was in trouble," "los[ing] some

money," and experiencing a "decline in profits and sales."

In the last few months of this period, Green & Freedman

ceased to be able to pay its debts including its required

contributions to the Health Fund. It then transferred its

assets to Boston Bakers.

Meanwhile, the Elmans had been writing themselves

and their relatives checks for no business purpose that the

Elmans could adequately explain. When questioned about one

of these payments, Richard Elman testified that the

corporation was repaying him an unrecorded loan -- itself

evidence weighing in favor of piercing the corporate veil,

see United States v. Pisani, 646 F.2d 83, 88 (3d Cir. 1981)

(piercing corporate veil on basis of repayment of

shareholders' loan at time when corporation was failing) --

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before stating that he could not remember the purpose of the

payment.

Particularly flagrant was the evidence of a

personal vacation that the Elmans financed with corporate

funds. In January 1991, the Elmans caused Green & Freedman

to pay for them to travel to New Orleans, where they attended

the Super Bowl. On direct examination, Stanley Elman

testified that the checks in question represented "payment

for expenses and conducting business." On cross-examination,

however, Stanley Elman admitted that Green & Freedman had no

customers in Louisiana and did no business in connection with

the Super Bowl. Nothing in Stanley Elman's testimony

rehabilitated his initial claim that he conducted business on

the Super Bowl trip.

In addition, the Elmans caused Green & Freedman to

pay Eleanor Elman, Stanley Elman's wife, three checks for a

total of $4,500. Stanley Elman initially explained these

payments as wages. However, the Elmans did not report this

amount on their tax return and there was no evidence that

Green & Freedman reported it as wages. Moreover, Green &

Freedman's receptionist, Claire Lank, testified that Eleanor

Elman did not work at Green & Freedman during 1992.

Finally, just days before Green & Freedman executed

the bulk transfer to Boston Bakers, and at a time when the

company had ceased to meet its obligations to the Health

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Fund, the Elmans caused the corporation to write an

unexplained check for cash in the amount of $10,000, and a

second check payable to Stanley Elman for $2,500.

The payments made by Green & Freedman to the Elmans

and their relatives during 1991 and 1992 with no apparent

business justification amounted to $30,109. In ruling on the

Elmans' Rule 50(a) motion, the district court was required to

draw all reasonable inferences and resolve credibility issues

in favor of the non-movant Health Fund. Looked at in this

light, the evidence was sufficient to support a jury

determination that the Elmans had used corporate funds for

personal purposes at times when they knew either that the

company was inadequately capitalized to meet its obligations,

or that, in fact, it had stopped doing so -- and, in

particular, had ceased to pay its Health Fund obligations.

We add that the jury's ability to conclude that the Elmans

had acted in a knowingly fraudulent manner would have been

bolstered by inconsistencies in the Elmans' testimony about

the payments, particularly their testimony that the Super

Bowl trip and Eleanor Elman's "wages" had business purposes.

The Elmans protest that the amount of arguable

self-dealing evidenced at trial was too little to justify

sending the Health Fund's case to the jury. The Elmans point

out that the payments described above amounted to less than

one percent of the corporation's gross annual sales, and that

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the trip to New Orleans was, after all, only one trip. While

it is difficult to quantify nicely the amount of fraud

required, the Elmans's self-dealing occurred on several

occasions, at a time when the company was in financial

straits. We cannot say that this conduct and the amounts

involved were de minimis, to the point that no reasonable

jury could find that the fraudulent intent prong of the Alman

standard was established.

B. Disregard of Corporate Identity

The fraudulent self-dealing just discussed was

probative not only of fraudulent intent but also of another

Alman element, disregard of corporate identity. On the

latter score, there was additional evidence. For example,

the Elmans appear to have mixed their own finances with those

of Green & Freedman's. At a time that the Elmans owed the

corporation $141,000 in loans, they also loaned it $170,000

through their real estate trust. These unexplained dealings

suggest that money was being moved around with little or no

regard for the corporate identity. There was no record of

the terms of the purported loans nor of any agreement to

repay. Undocumented and interest-free loans could be found

to show a disregard for the corporate form. See, e.g.,

Uriarte, 736 F.2d at 524 (treating unrecorded and interest-

free loans from shareholders to the corporation as evidence

of shareholders' disrespect for corporate form).

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Beyond the undocumented loans, there was evidence

of inadequate and, indeed, fraudulent record keeping. The

Elmans admittedly falsified Green & Freedman's minutes to

state that their wives, who served as nominal directors,

attended and authorized corporate borrowing, when in fact

their wives did neither.

We accept the Elmans' contention that a closely-

held corporation need not hew to every corporate formality in

order to maintain its shareholders' immunity from the

corporation's debts. A veil-piercing plaintiff will not

prevail if the evidence shows only that the closely-held

defendant corporation was run without the strict formalities

of its publicly-held counterpart. But the evidence adduced

at trial, viewed most favorably to the Health Fund, could be

found to show practices that went beyond mere informalities.

Important transactions between the corporation and its

controlling shareholders went undefined, and the Elmans

appear to have created false minutes. These facts, when

added to the financial self-dealing and when viewed in a

light most favorable to the Health Fund, support a reasonable

inference by a jury that the Elmans, in the two years before

Green & Freedman's demise, did not treat Green & Freedman as

a separate entity.

C. Manifest Injustice

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The evidence just described under the first two

Alman factors could also allow a reasonable jury to conclude

that sheltering the Elmans from Green & Freedman's liability

to the Health Fund would be manifestly unjust. As one

commentator has explained, courts have found this prong met

when "a corporation is so undercapitalized that it is unable

to meet debts that may reasonably be expected to arise in the

normal course of business." Note, Piercing the Corporate Law

Veil: The Alter Ego Doctrine Under Federal Common Law, 95

Harv. L. Rev. 853, 855 (1982). Thus, a jury would not be

unreasonable in viewing as manifestly unjust the Elmans'

decision to issue themselves payments for personal, non-

corporate purposes, as well as other unexplained payments, at

a time when the corporation could not meet its obligations to

the Health Fund. Of course, the mere non-payment of debt is

not, by itself, enough to justify piercing the corporate

veil. However, a jury could reasonably conclude on the basis

of the evidence below that the Elmans both placed their

personal interests ahead of their corporation's

responsibilities and did not themselves honor Green &

Freedman's corporate form. As a result, it could be thought

manifestly unjust to insist that the Health Fund be

restricted by the corporate form.

IV. Piercing the Corporate Veil: Boston Bakers

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Whether the evidence sufficed for a jury to find

the Elmans personally liable for Boston Bakers' successorship

obligation to pay Green & Freedman's indebtedness for Health

Fund contributions missed in April 1992, through January

1993, is more problematic. Given the Elmans' potential

direct liability, supra, for Green & Freedman's debts on this

score, the question of their tangential exposure for the same

debt via Boston Bakers may seem more theoretical than real.

Still, the court's ruling on count 4 of the complaint raises

the issue, and we must address it.

For the showing of fraud needed to pierce Boston

Bakers' corporate veil, the Health Fund relies inter alia

upon the Elmans' transfer of Green & Freedman's assets to

Boston Bakers, a transaction said to be inherently

fraudulent. Yet we can see nothing in the transfer itself

that further disadvantaged the Health Fund in its ability to

realize its claim for Green & Freedman's unpaid

contributions. Had the Elmans chosen simply to shut

down the operations of Green & Freedman in early 1993,

instead of undertaking the bulk transfer to Boston Bakers, a

jury would have to conclude that the Health Fund would have

received nothing. At the time of the bulk transfer, it was

undisputed that Green & Freedman had no more than $2,000 in

cash on hand, and liabilities to secured creditors that

outweighed its assets. The firm's primary secured creditor,

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U.S. Trust, held a security interest in all of Green &

Freedman's assets. Once a debtor grants an all-assets

security interest, unsecured creditors like the Health Fund

are made no worse off by a bulk transfer: the transferred

assets were already encumbered and therefore unavailable to

the Health Fund regardless of the bulk transfer.

We note that neither in its second amended

complaint nor in arguments on appeal, has the Health Fund

claimed that Boston Bakers, as Green & Freedman's successor,

was liable under the latter's collective bargaining contract

for payments after January 15, 1993, the date Green &

Freedman shut down. Rather the damages sought are for the

period from April 1992, until January 15, 1993, being all

based on defaulted contributions owed by Green & Freedman

while it was still operating. Boston Bakers' liability is

premised solely on its inherited responsibility for these

earlier debts of its predecessor. As said, had Green &

Freedman simply shut down on January 15, 1993, the Health

Fund would apparently have been no better off. (It might,

arguably, have been worse off.) Plaintiff propounds no

concrete theory as to how the bulk transfer further

diminished its prospects for recovering the sums owed by

Green & Freedman between April 1992 and January 15, 1993.

It is significant that, from the outset, Boston

Bakers continued openly to carry on the business of Green &

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Freedman. Lank, Boston Bakers' nominal shareholder and

receptionist, even continued to answer the phone "Green and

Freedman" after the bulk sale. A company does not extinguish

its ERISA obligations simply by changing the name on its

letterhead. See Hawaii Carpenters Trust Funds v. Waiola

Carpenter Shop, Inc., 823 F.2d 289, 294 (9th Cir. 1987)

(holding that alter ego test is met when two corporations

share a "substantial continuity"); cf. Guzman v. MRM/ELGIN,

409 Mass. 563, 566 (1991) (explaining exception to general

rule of successor non-liability for a transferee that "is

merely a continuation of the seller corporation"). Thus,

Boston Bakers was available throughout its existence to

answer for the liabilities of its predecessor.

At trial, the Health Fund produced no evidence as

to how the bulk transfer worked to its disadvantage. As

Richard Elman's uncontradicted testimony put it, by December

1992, Green & Freedman was in such dire straits that it had

to choose between liquidation and reorganization. The Elmans

chose the latter course, and undertook a reorganization

through the bulk transfer.

Further undercutting the contention that the mere

fact of the bulk transfer demonstrates the Elmans' fraudulent

intent is the fact that they did not conceal the transfer.

As required by statute, Green & Freedman notified its

creditors, including the Health Fund, before executing the

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bulk transfer. The district court thereafter denied the

Health Fund's motion to enjoin the transfer, an action from

which no appeal was taken.

We are thus unable to find, on this record, that

the bulk transfer provided the Elmans with an unfair

advantage, amounting to a fraud, material to the Health

Fund's current claim. Under Alman, fraudulent intent is a

necessary element in order to piece the corporate veil. We

do not think a jury could properly derive a relevant finding

of fraudulent intent material to the harm alleged from the

transfer by itself. See United Elec., Radio and Machine

Workers, 960 F.2d at 1094 (approving "good faith if

ultimately unsuccessful attempt to resurrect a moribund

company"); Laborers Clean-Up Contract Admin. Trust Fund v.

Uriarte Clean-Up Serv., Inc., 736 F.2d 516, 525 (9th Cir.

1984) (noting difference between a corporation that was

unable to pay its debts from the outset and one that simply

"fell upon bad times").

Besides the fact of the bulk transfer, the Health

Fund points to other factors as a supposed basis for piercing

Boston Bakers' veil. In its complaint it alleged that the

nominal and sole shareholder, Claire Lank, was "unaware" of

her obligations and rights as a shareholder and, instead of

following her independent judgment, followed the Elmans'

instructions. Also alleged was the Elmans' complete control

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over Boston Bakers, even though they owned no stock; the

Elmans' disregard of corporate identity; and the

incorporation of Boston Bakers with fraudulent intent. These

allegations, however, to the extent legally material, must

stand or fall on the existence in the record of some

supporting evidence. Moreover, proof of corporate

informalities, standing alone, are insufficient. Plaintiff

may not prevail without some evidence of fraudulent intent

material to the harm suffered.

There is no evidence of financial self-dealing in

the case of Boston Bakers such as occurred with Green &

Freedman. None of the checks introduced by the Health Fund

as payable to or for the Elmans came from Boston Bakers'

accounts.

In respect to the claimed "undercapitalization" of

Boston Bakers, all the latter's capital came from the bulk

transfer; there was no unmet agreement by the Elmans to add

more, nor evidence that, after transfer to Boston Bakers,

they diverted the bulk transfer funds to personal objectives.

The mere fact that Boston Bakers eventually failed or had

less capital than needed is not a basis for reaching the

Elmans personally, absent fraud.

Much is made of the fact that Richard Elman

indicated ignorance as to how he was named president and

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director of Boston Bakers3 or whether Boston Bakers held an

annual shareholders' meeting. Stanley Elman failed to

recognize the firm's stock ledger. And Lank, the sole

shareholder, appears to have been a straw for the Elmans,

allegedly so as to make it harder for creditors to reach them

personally. None of these items, however, singly or

together, provide a sufficient evidentiary basis to pierce

the corporate veil. While they may suggest a lack of

attention to corporate formalities, they do not reflect

fraudulent intent material to the harm alleged, nor is it

clear how any of them, even slightly, disadvantaged the

plaintiff.

There was also evidence that the Elmans' wives did

not know they were directors; did not participate in board

meetings, although corporate records falsely indicated they

did; and did not know that Lank was the sole stockholder.

But these snippets do little to demonstrate more than

corporate informality. Even if the false corporate records

concerning the wives' attendance at directors' meetings are

characterized as a "fraud," there is no evidence the Health

Fund knew or relied on this information to its detriment or

3. Q: And would you acknowledge, sir, that you don't know
by what authority you were elected a director of
Boston Bakers?
A: The attorneys set up the corporation. I don't know
the direction. I know I was an officer, the
president.

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sustained any injury whatever as a result. The "fraudulent

intent of the individual defendants" mentioned in Alman

requires some meaningful relationship between the intent and

the harm visited upon plaintiff. We add that even the Health

Fund itself does not argue that the incorrect records by

themselves show fraudulent intent sufficient under Alman.

We conclude that the district court was correct in

granting the Elmans' motion for judgment as a matter of law

with respect to the Elmans' alleged personal liability for

Boston Bakers' corporate obligation to make good Green &

Freedman's delinquent payments to the Health Fund.

V. Conclusion

The district court's grant of judgment as a matter

of law is vacated with respect to Count 3 and affirmed with
vacated affirmed

respect to Count 4. The case is remanded for a new trial and

other proceedings consistent herewith.

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